Tuesday, 21 January 2014

Displacing the Nearest Relative

Not the right way to displace the nearest relative

The Mental Health Act
1959 first introduced the concept, role and statutory rights and duties of the
Nearest Relative as applied to patients subject to the Act. The 1983 Act and
the 2007 Act hardly made any changes. I have discussed the role of the Nearest
Relative in a number of previous posts (just look up the Nearest Relative tag
on the Blog).

In certain circumstances,
the NR under the Mental Health Act can be displaced, and replaced with an
acting NR.

The Code of Practice states
(Para 8.6):

“An acting nearest relative
can be appointed by the county court on the grounds that:

the nearest relative is incapable
of acting as such because of illness or mental disorder;

the nearest relative has objected
unreasonably to an application for admission for treatment or a
guardianship application;

the nearest relative has exercised
the power to discharge a patient without due regard to the patient’s
health or wellbeing or the safety of the public;

the nearest relative is otherwise
not a suitable person to act as such; or

the patient has no nearest
relative within the meaning of the Act, or it is not reasonably
practicable to ascertain whether the patient has a nearest relative or who
that nearest relative is.”

I was recently asked by an AMHP: Is there
any guidance to the practicalities of executing the role of acting nearest
relative for professionals?

This got me thinking. And searching. While
displacing a patient’s NR and appointing an acting NR is not a very common
procedure, it happens often enough that all local authorities have detailed
written procedures for how AMHP’s may displace nearest relatives. However, none
of them appear to give written guidance on exactly how an individual appointed
to take on that role should discharge that duty.

The Code of Practice has nothing to say
about how someone appointed to act as a nearest relative should act, and
neither does the Reference Guide. The MHA itself makes the only reference to
specific duties, and this is in Sec.116.

Sec.116(1) states:

“Where a patient to whom this section
applies is admitted to a hospital ... the authority shall arrange for visits to
be made to him on behalf of the authority, and shall take such other steps in
relation to the patient while in the hospital as would be expected to be taken
by his parents.”

Sec.116(2) defines to whom this section
applies. It predominantly applies to children and young people, but it also
includes “(c) a person the functions of whose nearest relative under this Act are
for the time being transferred to a local social services authority.”

Richard Jones in the Mental Health Act
Manual has little to add to the bare words of the MHA. However, David Hewitt,
the author of The Nearest Relative Handbook, in an interesting and informative
lecture I attended at a North West & North Wales AMHP Conference in 2013,
observed that the acting nearest relative “must be treated as if they were the
substantive nearest relative”. He interprets this to mean that they should exercise
all the nearest relative rights, interestingly including the right to delegate
nearest relative status.

David Hewitt, in The Nearest Relative
Handbook, points out that to act
as a patient’s representative is not the identified role of the NR. This means
that the local authority appointed acting NR is a distinct role from that of
the Independent Mental Health Advocate (IMHA). He acknowledges that the role of
the acting NR is ill-defined, but also points out that this is also the case for
a normal NR.

The NR has some wide ranging
powers and duties. These include the right to be consulted regarding decisions
being made by professionals concerning the patient, the right to make an
application in their own right under Sec.2, 3, 4 or 7 MHA, and the right to
request that an AMHP assess the patient under Sec.13(4) MHA.

If the acting NR is an
AMHP employed by either the local authority or the local MH Trust, it is
actually quite difficult to see how they might comfortably exercise some of
these powers and functions.

Indeed, David Hewitt
points out that there ais considerable scope for conflicts to arise with the role
of the AMHP, the role of the IMHA, the wider advocacy role, and with the role
of the Director of Adult Services. He has suggested that possible solutions to
these conflicts could be by neighbouring local authorities having reciprocal
arrangements to provide this role, or even to use some sort of external independent
provider.

It seems to me that
this is an issue that local authorities and Trusts need to address.

11 comments:

Interesting post. Thanks for mentioning David Hewitt's stuff: I wasn't aware of this.

Nearest Relative is a funny role. Is it an important counterbalance to professional over-zealousness or the last vestige of inconvenient family members being 'signed in' to the asylum? I suppose no-one had thought of advocacy when it was introduced and one of the things considered in discussions before the 2007 Act but which didn't happen was encouraging people to nominate their own NRs. I'd imagine if this rather radical step had been taken NR powers might have been pruned to triggering tribunals and managers' hearings rather than allowing discharge and derailing of professional intentions. Because of the vagaries of the Act, someone's NR may or may not be their main carer or may not even know them particularly well. AMHPs have discretion not to consult NRs in certain very defined circumstances, such as this being detrimental to the potential patient because of a deteriorated relationship because of the Bristol case but this is generally interpreted as being quite a high threshold and I'm concerned that in many MHA assessments the legal requirement for consultation with the NR can be prioritised over contact and consultation with people who are genuinely in the person's corner.

As far as I've ever been able to see, most NRs conscientiously try to do their best but some are clearly wracked with guilt about being, as they can see it, the person who ultimately was responsible for an admission and some then have to deal with the damaged to a family relationship created by acting in the role.

The power to displace is also a slightly odd feature of the Act. Is a 'good' NR one who acquiesces at professional recommendations or one who represents the wishes of the person, who, generally speaking, doesn't want to be in hospital? Depends I suppose on how stressed and busy the staff involved are as to whether they consider this as a vindication of the checks and balances in the system or more work to do. The fact that the procedure to displace is cumbersome and expensive is a very roundabout way of ensuring staff consult properly and fully with the NR to address their concerns as a cheaper alternative.

No legislative change is on the horizon so, unless the role falls into abeyance because of a case law ruling drawing on article eight of the convention on Human Rights (family life and privacy in correspondence) which also protects the right to withdraw from family relationships, I'd imagine we're stuck with it.

Can I ask what happens when the NR decides to displace themselves or resign /abdicate from the role? Possibly because they cant deal with the conflict this may bring and the role is redundant in many cases when objecting to clinical recommendations.If there is no other identified NR then does this mean the individual doesn't get one appointed as no application to displace? Really interested to know this as have been asked recently

There ar many cases where there is either no [known] NR or they have disappeared etc. Worryingly there is no responsibility in law for someone to be appointed, so , in most cases the patient doesn't have an NR. I have not had many dealings with IMHAs, but I would have thought they should be taking this up with LSSA / AMHP to get someone appropriate to act - that's of course assuming the patient has an IMHA - often not when they should.

Thanks that's what I thought. Seems to be a void unless possibly mental capacity is an issue and then goes another route. Maybe all those AMHP's now detaining under the guise that the individual does not have capacity to agree to admission should be reminded to go down this route!

Truth be however that authorities see the NR as an obstacle until that same person is the full time carer thereby saving authorities money by putting in all support.

Re IMHA the CQC findings in the last annual report tells us exactly how few of these there are.In this area of London less than 20% of detained patients have access and the Trust failed the CQC inspection on rights issues ( amongst others)

All this leaves patients with no NR and no-one appointed by the LA as a NR. If the law believes this is important legally then surely this is a breach of some sorts?

The NR can delegate their role. I don't think this can be done once and for all time as staff will have to check back periodically to see if that is still someone's view. It's generally done in writing. You can have a NR it isn't 'practicable' to consult, for instance if they're alive but are not in a position to comment, for instance, a parent with an advanced dementia type illness. Lots of AMHPs make errors by then continuing on down the list for an alternative consultee or by trying to pick a NR using commonsense notions about their involvement in the persons' life. The law is archaic and shot through with contradictions but reform is not on the agenda as no government will willingly tackle a policy area which requires explicit consideration of human rights issues with the Daily Mail watching. I believe the whole concept of the NR causes AMHPs to overfocus on the box ticking requirement to identify and speak to this one person rather than do a range of consulations intended to find the views of the people who know the patient best and evaluate the strength of their support networks.

Thank you good point. In the cases that are causing me difficulty the NR doesnt want to delegate - just resign - often because they are completely despairing at the system and simply do not want to be seen by their loved one as colluding with a MH system that is perceived to cause harm.

And I can see their point as at the end of the day the NR is often the main carer/ care giver and so will be left to pick up the pieces of the trauma of being sectioned . And not distancing themselves from a very specific legal role can then wreck the relationship.

It is about looking at the long game - something services simply do not do so I can see their point. Can still assert opinion , views, report for Tribunal etc but without the burden that the role brings to them. Because in reality it is ab archaic system and they have no real power anyway

Thanks for the useful information. In my circumstance, I am not the nearest relative and deem the existing nearest relative to have a conflict of interest and not best placed to have that responsibility. I've got no idea how I go about filing an application on the patients behalf to displace the current nearest relative. Any advice for me. It would be appreciated. Thanks

Point of interest: I had incredibly abusive parents and am currently trying to remove my mother as nearest relative via the High Court (a unique case I am told). The law, however, states I cannot do this without letting her know of my intentions as she has the right to dispute my reasons for wanting to remove her - i.e physical abuse which is well documented. I don't have contact with her at all so why should this be? When hospitalised, patients are wholly reliant on the AMPH of the day taking note of their very real concerns about contact with their NR. Unfortunately, my last experience of an AMPH over rode my pleas and contacted my mother anyway - she turned the responsibility down and forebade any other family member to take on the role instead. I am seriously thinking of marrying 'anyone' in order that I can remove her responsibility myself within days! Just a thought.......

What happens when the Nearest Relative dies whilst someone is still detained, or indeed while they have been placed on a Community Treatment Order in the comunity? I thought I knew but on reading my rather old Jones and the new CoP I find nothing. The reference guide refers an automatic change in NR when the NR dies but it's not clear if this is the case *during* a detention, where I believe normally the NR would remain whoever was the NR at the time of detention.

A deceased person cannot be a NR, so the next in line would automatically become the NR. They would then in future have to be consulted in certain situations, and would have all the other powers, eg to apply for the discharge of the patient.

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About Me

I am an Approved Mental Health Professional working in a semi-rural area in England. I have practised under 3 Mental Health Acts, since as long ago as 1981, even before the 1983 Mental Health Act. Which makes me pretty ancient now.
This blog is designed to illuminate and explain the functions and dlimemmas of an AMHP within the Mental Health Act. It is intended to be of help to professionals and service users alike. I hope that it is both informative and entertaining.
I am also a freelance trainer, and a part time tutor on an AMHP course. I've appeared at conferences all over England and Wales. If you'd like to book me for your conference or training event just send me an email.